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The Notice points out that exercise centralized jurisdiction to the foreign-related civil and commercial cases is not only an important measure of reform for adaptation of new situation of WTO entry, but also an important decision for optimizing the cases’ jurisdiction and fully displaying the trial potency.
In the Speech, vice president Wan thinks that it is fundamentally intended to realize the judicial reform theme of “fairness and efficiency”, promote the public confidence and authority of Chinese government in the rule of law, and create a sound judicature environment for “China’s entering the world”. To bring foreign-related civil and commercial cases under centralized jurisdiction better, it can be done through reforming the system of court jurisdiction, adopting a correct way of adjudication of foreign-related civil and commercial cases in line with international standards under relevant principles of the WTO.
This way has the following advantages: Firstly, it is beneficial to regional handling of foreign-related civil and commercial cases by the courts concerned, countering interference by local government authorities and maintaining unity of the judicial system.
Secondly, to authorize a small number of intermediate and grassroots courts to exercise jurisdiction over the first-instance trial of foreign-related civil and commercial cases is in the interest of concentrating advantageous judicial resources on handling such cases well. It is also in the interest of strengthening supervision over and guidance to the adjudication of foreign-related civil and commercial cases and realizing specialization in the trial of such cases.
Thirdly, to bring foreign-related civil and commercial cases under centralized jurisdiction means upgrading of the adjudication of such cases. The final-instance trial of foreign-related civil and commercial cases by Higher People’s Courts is beneficial to raising the quality of adjudication and ensuring impartiality of justice.
And lastly, to bring foreign-related civil and commercial cases under centralized jurisdiction is beneficial to optimizing the structure of judges and strengthening professional training of judges. It is also in the interest of developing a force of highly qualified judges who understand laws (including relevant international laws and conventions) well, have good knowledge about international economy and trade, and are good at foreign languages.
From the point of this original intention and Chinese present trial situation, this way of centralized jurisdiction is positive. On the other hand, however, as a general judicial interpretation, the exercise of the Rules inevitably has the profound influence on the jurisdiction over foreign-related civil and commercial cases. This kind of jurisdiction has cross-regional character, besides the Higher People''s Courts, only do the minor grassroots (ETDA) People’s Courts and the specific Intermediate People’s Courts exercise this kind of jurisdiction in the first-instance. This kind of centralized jurisdiction injuries those courts who lost this kind of jurisdiction in some degree. At the beginning of execution of the Rules, the echo of the court system is intense extremely.
Moreover, the trial grade of this kind of case also enhanced correspondingly. Besides the first trial cases accepted by the People’s Courts of the ETDA are judged finally by the Intermediate People’s Courts, the most cases are judged finally by the Higher People’s Courts. This means the Higher People’s Courts will shoulder heavy responsibility on trials of foreign-related cases in final processing, no matter whether the cases are complex or simple, whether the amount of dispute is big or small and no matter how the effectiveness of cases does.
Another influence along with it is the retrial duty of the Supreme People’s Court will also may aggravate which can affect the Supreme People’s Court’s judicial supervision on all grades of courts.
II.A.2.The Sphere of Centralized jurisdiction
The Rules accepts definitely five kinds of cases, which are suitable for the centralized jurisdiction, but at the same time, it has removed three kinds of cases, which are not suitable for the centralized jurisdiction. However, there still exist some problems as following:
Firstly, besides above five kinds of cases under the centralized jurisdiction, whether it has excluded others? Along with accession of WTO and as the advancement of globalization of world economics further speeds up, foreign-related relations in civil and commercial matters deepens day by day, there may unceasingly emerge new and complex cases, then whether can they enjoy the centralized jurisdiction? The Rules should have the positive preparation for this but cannot negatively wait for new jurisdiction problems to be appearing. We think, therefore, to hold the new cases that will possibly appear in the future, the best way is to establish an elastic provision in the Rules.
Secondly, what are detailed cases included in above five kinds of cases? The Rules is not clear about it, but the Speech has been generalization, for instance, the disputes over foreign-related contracts are disputes over the international economy trade, the investment, the finance, the insurance, financing, guarantee, negotiable securities, stock, trust, cooperation, management between the legal persons and legal person and other organization and so on; the disputes over foreign-related torts mainly are disputes over bill, negotiable securities, shareholder’s rights and interests, company’s rights and interests, property rights and so on. Therefore, there may be disputes whether different courts apply to the Rules.
At last, are three kinds of cases being not suitable for the centralized jurisdiction absolute? The quantity of the dispute over the frontier trade is generally speaking so few that it is not suitable for the centralized jurisdiction, which is reasonable. However, in some situations, it is difficult possibly to differentiate the relationship between the case of foreign-related real estate, the case of foreign-related intellectual property, the case of foreign-related contract and the case of foreign-related torts, which may reduce the overlap situation, such as the contract of real estate development, the torts of real estate, the contract of trademark transfer, the torts of copyright, and so on. Moreover, as for as these two kinds of cases concerned, the amount of them is huge, the society affect of them is wide and the difficulty of dealing with them is also big.
So the Rules has no reason to remove them from the centralized jurisdiction. Even if it is to emphasize these two kinds of cases the particularity, whether it is the dispute over the contract or the dispute over torts, which is distinguished into the real estate case or the intellectual property case, they also should enjoy the optimized judicial resources of the Rules.
II.A.3.Procedural Issues Arising from Centralized Jurisdiction
The introduction of centralized jurisdiction has led to the change of jurisdiction by the geographical scope and grade jurisdiction. To solve the problem of inconsistency with relevant judicial interpretations promulgated previously, the Rules provides: “Where judicial interpretations or rules are inconsistent with this set of Rules, this set of Rules shall apply.”
The problems of inconsistency in this case are mainly related to cases of application for the preservation of property before the institution of actions, and cases of application for recognition and enforcement foreign-related civil and commercial arbitral awards and valid judgments, which normally involve the “place of property” and the “place of residence of the defendant”, and also related to the issue of whether Higher People’s Courts have power to define jurisdiction.
According to the Civil Procedural Law and relevant judicial interpretations, the aforesaid two types of non-litigious cases should be under the jurisdiction of courts at the place of property, and courts accepting cases of application for the preservation of property before the institution of actions therefore have jurisdiction over such cases. With the promulgation of the Rules, such a system will change along with the change of jurisdiction.
As far as the Rules is concerned, courts at the place of property, even if they have taken measures for the preservation of property before the institution of actions, will no longer have jurisdiction over substantial disputes in such cases, expect for the circumstance that both the two factors are under the jurisdiction of the same courts. From now on, in applying for the recognition and enforcement of foreign arbitral awards and court judgments, the parties concerned will have to file their applications to relevant courts with centralized jurisdiction. Where valid legal documents on the recognition and enforcement of foreign arbitral awards and court judgments need to be enforced with the assistance of courts with geographical jurisdiction over the cases concerned, the parties concerned can authorize the courts to enforce them.
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